Citation Nr: 0024846
Decision Date: 09/18/00 Archive Date: 09/27/00
DOCKET NO. 96-29 970 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
September 1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 rating decision by the
Nashville, Tennessee, Regional Office (RO) of the Department
of Veterans Affairs (VA).
In February 1998 the Board remanded the case to the RO for
additional development.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. Persuasive medical evidence fails to establish a current
diagnosis of PTSD.
CONCLUSION OF LAW
The veteran does not have PTSD related to active service.
38 U.S.C.A. §§ 1110, 1154(b), 5107(a) (West 1991); 38 C.F.R.
§§ 3.303, 3.304 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Background
Service medical records are negative for complaint or
treatment for any psychiatric disorders. The veteran's March
1970 separation examination included a normal clinical
psychiatric evaluation. Records show the veteran served in
Vietnam from April 1968 to April 1969 with the 169th Engineer
Battalion and received decorations and awards for his
service. He participated in campaigns including the Vietnam
Counteroffensive Phase IV, the Tet Counteroffensive, and the
Vietnam Counteroffensive Phase III. His reported military
occupation specialties during that period included carpenter
and cook.
Private medical records dated in May 1978 indicate that the
veteran was hospitalized for a drinking problem. The
diagnosis was alcohol addiction.
Records include a September 1994 psychological evaluation
associated with the veteran's claim for Department of Health
and Human Services, Social Security Administration (SSA)
disability benefits. Mental status observation revealed that
the veteran was adequately dressed but that he rocked back
and forth throughout the examination without apparent
knowledge. The examiner, a psychologist, stated that the
veteran likely had low average intelligence. The veteran
reported he experienced nightmares every night and that he
woke up fighting. He denied visual hallucinations but stated
that he was "always looking for something." He stated he
thought people were out to hurt him. The examiner noted that
the veteran reported a prior diagnosis of schizophrenia. The
diagnostic impressions were PTSD, psychosis not otherwise
specified, alcohol abuse by history, and rule out
schizophrenia.
VA medical records dated in January 1995 included diagnoses
of major depressive episode and dysthymic disorder. A
February 1995 report included a diagnosis of personality
disorder.
During VA psychiatric examination in July 1995 the veteran
reported he had been in situations in Vietnam where he came
under enemy fire and that after service he frequently thought
about the people who were killed there and wondered why he
had not been killed. It was noted that while the veteran
held long-term employment after service, he found himself
unable to deal with people because he wanted to become
physically violent. The examiner, Dr. E.J.S., noted the
veteran demonstrated a high degree of memory impairment and
stated that his mood involved pervasive anxiety and mild
depression. The veteran also reported he experienced an
ever-present readiness to become irritated and angry.
The examiner noted that the September 1994 SSA psychological
evaluation included a diagnosis of PTSD but stated the
diagnosis was not made on any clearly defined grounds. It
was also noted that while the veteran did not describe any
specific situations or events during service in Vietnam that
he had many of the characteristic signs of chronic PTSD,
including difficulty concentrating and personality changes.
An Axis I diagnosis was deferred and the Axis II diagnosis
was personality disorder. The examiner stated that
additional tests should be conducted to determine if a
diagnosis of PTSD was warranted.
In a November 1995 statement in support of the claim the
veteran reported that upon his arrival in Vietnam in April
1968 the airstrip was blown up in front of his plane and his
disembarkation was delayed while temporary repairs were made.
He also reported an incident in approximately August 1968
during a truck convoy in which he encountered a concealed
enemy soldier who signaled him not to give away his position
and that it had caused him to shake so much that he had
difficulty climbing into his truck.
He stated that in approximately June 1968 he had been in a
church which was hit by debris from a nearby explosion and
that in approximately July 1968 he and another serviceman
witnessed an enemy soldier shooting people randomly in the
street while taking a group of local workers home. He
reported that in approximately March 1969 he was in a
building in which the lights were knocked out and the
inhabitants were thrown into one another during an enemy
attack.
On substantive appeal the veteran reported that a serviceman
he had befriended was killed by a fellow serviceman and that
he had helped clean up after the incident. He also stated
that he had mailed the possessions of the deceased serviceman
home to his spouse.
An August 1996 VA examination report revealed the veteran was
oriented to time, place, and person, but that he appeared
moderately, chronically depressed over his unchanging life
situation. The examiner noted that the veteran reported
periodic thoughts of suicide. The diagnosis was dysthymia
secondary to personality disorder, not otherwise specified.
In correspondence dated in September 1996 the U.S. Army &
Joint Services Environmental Support Group (ESG) reported
that morning reports of the 169th Engineer Battalion dated in
June 1968 revealed a cook had been shot and killed by a
fellow serviceman.
VA hospital records dated in September 1996 included
diagnoses of dysthymic disorder, alcohol dependence in
remission, and no overt evidence of schizophrenia. It was
noted that during the course of hospitalization the veteran
was observed closely for symptoms of PTSD but that none were
shown.
An October 1996 VA examination report noted the veteran was
hospitalized in September 1996 for his psychiatric disorder
and that diagnoses of dysthymia, personality disorder, and
alcohol dependence had been continued at that time. It was
noted that the veteran appeared confused and easily
distractible, that he endorsed auditory and visual
hallucinations, and that his memory and reasoning were
impaired. The examiner stated that the results of
psychological testing were of dubious validity because of
symptom over endorsement but that it was not felt that the
veteran had PTSD.
The examiner also noted that the veteran's Mississippi Scale
for Combat-Related PTSD resulted in an inflated score which
was usually supportive of a PTSD diagnosis, but that his
response pattern reflected an exaggeration which was lacking
in any subtlety. The diagnoses included psychotic disorder,
not otherwise specified, dysthymia, alcohol dependence in
remission, and personality disorder. It was noted that the
results did suggest some form of major cognitive impairment
and that the veteran faced moderate to severe stressors in
his life, including homelessness, financial instability,
legal problems, and a lack of social support.
In an October 1996 application for VA benefits the veteran
reported that he was depressed all the time, that he had
survivor's guilt, that he was tired all the time, that he
experienced growing tension, that he startled easily, that he
had intrusive thoughts and nightmares about Vietnam, and that
he isolated himself all the time. In a separate application
he reported that he had difficulty concentrating and that he
experienced episodes where he would fall down thinking he was
back in Vietnam.
In a November 1996 statement the veteran's former spouse,
B.D., reported the veteran had severe emotional problems and
that he had demonstrated periods of rage and periods in which
he was overly friendly and then would not speak to anyone for
days.
In a November 1996 statement L.R.P., described as a lifelong
friend for over 30 years, noted the veteran had been
evaluated for possible disability benefits due to mental
problems as a result of military service.
In correspondence sent to a congressional representative,
received by the RO in April 1997, the veteran's mother
reported that he had not been the same since returning from
Vietnam and that he had been unable to function sufficiently
at home or at work. She stated that he had experienced
severe flashbacks and severe emotional stress because of
PTSD.
In an April 1997 statement in support of the claim the
veteran reported that he had trouble eating because he tasted
and smelt gunpowder all the time. He stated he had been
plagued by his experiences in Vietnam, including the smell of
blood and gunpowder and the sound of bombs exploding.
VA medical records dated in November 1997 show results of the
veteran's psychological testing were consistent with an
extremely severe level of depression and a diagnosis of PTSD.
It was noted, however, that his scores were extremely high
and could be an indication of the symptom exaggeration which
was noted by the intake examiner's evaluation of the veteran.
In correspondence received by the RO in March 1998 the
veteran reported that in approximately May 1969 he had been
called to subdue a serviceman who was holding the platoon at
bay and that he disarmed the serviceman and knocked him out.
He also reported that in approximately June and August 1969
he had been called to assist in incidents in which a
serviceman was threatening to kill officers and that he had
been able to disarm the serviceman.
A May 1998 VA psychiatric consultation after referral from
the emergency room included diagnoses of dysthymic disorder
and PTSD. It was noted the veteran reported a history of
dysthymic disorder and ratings for PTSD and occasional audio
and visual hallucinations of people from Vietnam.
During VA examination in May 1998 the veteran reported that
he felt he was under a big dark cloud all the time. He
stated he was unable to enjoy anything and that he tried to
avoid being around people. He reported that he had few
friends and that he had been violent with his wives and
others. The examiner noted that the veteran did not
volunteer subjective symptoms indicative of PTSD and when
asked about his claim for service connection reported he saw
faces coming out of the floor and walls.
Examination revealed the veteran was fairly well groomed and
maintained a noticeable side to side rocking motion
throughout the interview. The examiner noted the veteran was
generally uncommunicative and created the impression of
evasiveness. There was no clinical evidence of a formal
thought disorder and no delusions or hallucinations were
elicited during the interview. It was noted that while it
was felt much of the veteran's unusual verbal behavior was
designed to conceal information, it was apparent he was
sometimes genuinely unable to efficiently process requests
for information. The examiner found that while factors were
sufficient to produce a functional psychiatric disability,
there was no evidence indicating that PTSD due to the
veteran's participation in the Vietnam War played a
substantial role in his chronic emotional and behavioral
maladjustment.
SSA records obtained by the RO include a June 1998
psychological evaluation by a clinical psychologist which
provided diagnoses of PTSD, alcohol dependence in partial
remission, and dysthymic disorder. It was noted that the
veteran experienced flashbacks of Vietnam and was easily
angered and irritated. An October 1998 report included a
diagnosis of a history of post-traumatic stress syndrome.
During VA examination in January 1999 the veteran reported
the area in which he served in Vietnam experienced mortar
fire, napalm, and the spraying of Agent Orange. He stated he
had used his weapon a few times at the perimeter but that he
had not been engaged in heavy combat. He reported he had
been in the National Guard until 1992. The examiner noted
the veteran did not elaborate much about his experience in
Vietnam and was not consistent in giving information. Upon
further questioning about his sleep disturbance the veteran
could not recall any specific information about nightmare
experiences and could not recall any specific information
about flashbacks or intrusive memories of Vietnam.
It was noted that the veteran reported he was involved in
divorce proceedings, that he complained of depression, and
that he avoided socializing with others, but that no other
symptoms of PTSD were reported. Upon examination the veteran
was alert and oriented times three. He was restless and
somewhat unkempt but was cooperative. His affect was
constricted and his rate of speech was slow but coherent and
logical. There were no flights of ideas or looseness of
associations and no evidence of delusions, hallucinations,
paranoid thinking process, or homicidal or suicidal ideation.
His concentration was somewhat impaired but his long-term,
short-term, and immediate recall were intact. His judgment
was questionable and his insight was inadequate. There was
no evidence of obsessive or ritualistic behavior, poor
impulse control, or panic attacks. The diagnoses included
dysthymic disorder, alcohol abuse and dependence in
remission, and personality disorder. It was noted the
veteran had been unable to elaborate much about his PTSD
symptoms but predominately described chronic depressive
symptoms and a past history of alcohol abuse and dependence
with some personality symptoms.
A February 2000 VA examination report noted that past medical
records were not available at the time of the interview but
that the veteran's history was regarded as accurate material.
The veteran reported he had seen a wounded serviceman who had
a mortar round stuck in his stomach and that when he first
arrived in Vietnam the airstrip was under attack and full of
craters which initially prevented his plane from landing. He
stated that his best friend from home had been killed in
Vietnam and that during the Tet Offensive he confronted a
South Vietnamese soldier and was able to save his life
because the soldier trusted him. The examiner noted that
there must have been many other events which were either
equally traumatic or more so because the veteran expressed a
preoccupation with blood and although at times he was able to
talk in an open narrative manner at other times he spoke in a
very diffuse and detached manner.
The veteran also reported that he had been extremely
hypervigilent or paranoid, drank heavily, and showed extreme
temper at home and in work situations. He stated that he
continued to check the bushes for cobras or enemy soldiers
and that upon hearing bombs he would start breathing really
hard. He recalled an occasion when he had an urge to kill
another man.
The examiner noted the veteran sat in a slightly slumped
position and kept his head in a position of avoidance until
he became more comfortable in the interview. He was
basically well oriented to time, place, and person but
presented in a manner which was very vague, diffuse, somewhat
scattered at times, and obviously extremely detached. His
affect was very flattened. The examiner noted that the more
one listened the more one could perceive the veteran was
presenting a detailed and very accurate account of exactly
how the Vietnam experience was impacting him internally.
It was noted that the veteran reported approximately two
nightmares per week, as noted by his wives, but that he could
not remember the content of the nightmares. He stated he had
a history of panic attacks at night in which he soaked the
bed with sweat and that during flashbacks he heard voices
which ended very quickly but then repeated. He complained of
an extremely sharp startle response and stated he remained
hypervigilent. The diagnoses included severe chronic PTSD.
The examiner noted the veteran was obviously very troubled
and dysfunctional as a result of chronic and persistent
problems with PTSD.
VA March 2000 examination by a panel of two board certified
psychiatric based upon an examination and a review of the
veteran's claims file found the elicited symptoms did not
warrant a diagnosis of PTSD. The examiners stated that the
evidence was overwhelming that the veteran did not have PTSD.
It was their opinion that the veteran was elaborating upon or
confabulating symptoms of PTSD. It was also noted that the
veteran gave no account of responding to the murder of a
fellow serviceman in Vietnam with either rage, shock, or
horror. The examiners stated that this was the principle but
not the only reason why a diagnosis of PTSD was not
warranted.
Upon mental status examination it was noted the veteran
denied suicidal or homicidal ideation. He was able to
maintain personal hygiene and other activities of daily
living. He was oriented to person, place, and time. The
examiners stated that memory testing results were peculiar in
that the first test results were 0 out of 3, but after
reminding the veteran that part of the determination included
competency to manage funds the results were three 3 of 3. It
was noted his rate and flow of speech was slow with a few
irrelevant comments and that the examiners could not rule out
the possibility of the intentional production of illogical
more obscure speech patterns in order to substantiate his
case.
Analysis
Initially, the Board notes that the veteran's claim is found
to be well grounded under 38 U.S.C.A. § 5107(a) (West 1991).
The United States Court of Appeals for Veterans Claims
(Court) has held that a well-grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of § [5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990).
The veteran's stressor include incurring mortar attacks and
seeing a fellow soldier wounded by a mortar round during
service, and the evidence of record includes medical reports
dated in September 1994, May 1998, June 1998, and February
2000 which provide diagnoses of PTSD related to claimed in-
service events. The Court has held that the truthfulness of
evidence is presumed in determining whether a claim is well
grounded. Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King
v. Brown, 5 Vet. App. 19, 21 (1993). The claim is well
grounded. Falk v. West, 12 Vet. App. 402, 404 (1999); see
also Samuels v. West, 11 Vet. App. 433, 435 (1998); Gaines v.
West, 11 Vet. App. 353, 357 (1998); Cohen v. Brown, 10 Vet.
App. 128 (1997). The Board is satisfied that all relevant
facts have been properly developed and that no further
assistance is required in order to satisfy the duty to assist
mandated by 38 U.S.C.A. § 5107(a).
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. § 1110 (West
1991); 38 C.F.R. § 3.303 (1999).
In the case of a veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, the Secretary of
VA shall accept as sufficient proof of service-connection of
any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service. 38 U.S.C.A. § 1154(b) (West 1991 & Supp.
1999); 38 C.F.R. § 3.304(d) (1999).
Pertinent case law also provides that 38 U.S.C.A. § 1154(b)
does not create a presumption of service connection for a
combat veteran's alleged disability, and that the veteran is
required to meet his evidentiary burden as to service
connection such as whether there is a current disability or
whether there is a nexus to service which both require
competent medical evidence. See Collette v. Brown, 82 F.3d
389, 392 (1996).
Entitlement to service connection for PTSD requires three
elements: (1) a current diagnosis of PTSD, (2) supporting
evidence that the claimed in-service stressor actually
occurred, and (3) medical evidence of a causal nexus between
the current symptomatology and the claimed in-service
stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997).
The Board notes that the decision in Cohen altered the
analysis in connection with claims for service connection for
PTSD and held that VA had adopted the fourth edition of the
American Psychiatric Association's Diagnostic and Statistical
Manual for Mental Disorders (DSM-IV). The major effect of
that decision was that the criteria have changed from an
objective "would evoke ... in almost anyone" standard in
assessing whether a stressor is sufficient to trigger PTSD to
a subjective standard. The criteria now require exposure to
a traumatic event and response involving intense fear,
helplessness, or horror and more susceptible individual may
have PTSD based on exposure to a stressor that would not
necessarily have the same effect on "almost everyone."
A diagnosis of PTSD by a mental health professional must be
"presumed (unless evidence shows to the contrary) to have
been made in accordance with the applicable DSM criteria."
Id. at 139. The sufficiency of a stressor is, accordingly,
now a clinical determination for the examining mental health
professional. Id. at 140, 141.
Recently, the VA regulation applicable to PTSD service
connection claims, 38 C.F.R. § 3.304(f), was amended to
reflect changes in law as a result of the Cohen decision.
See 64 Fed. Reg. 32807-08 (1999). The Board notes the
amendment replaced the requirement of a "clear" diagnosis
of PTSD with a requirement of medical evidence diagnosing the
disorder in accordance with 38 C.F.R. § 4.125(a) and stated
that lay testimony alone, in the absence of clear and
convincing evidence to the contrary, could establish an
inservice stressor if the evidence established the veteran
engaged in combat with the enemy and the claimed stressor is
related to that combat. See 38 C.F.R. § 3.304(f) (1999).
The Court has held that where the law or regulations change
while a case is pending the version most favorable to the
claimant applies, absent congressional intent to the
contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312-313
(1991).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d). For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
The Court has held that the chronicity provision of 38 C.F.R.
§ 3.303(b) is applicable where evidence, regardless of its
date, shows that a veteran had a chronic condition in service
or during an applicable presumptive period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the Court's case law, lay
observation is competent. If the chronicity provision is not
applicable, a claim may still be well grounded if the
condition is observed during service or any applicable
presumptive period, continuity of symptomatology is
demonstrated thereafter, and competent evidence relates the
present condition to that symptomatology. Savage v. Gober,
10 Vet. App. 488 (1997).
The Court has held that a witness must be competent in order
for his statements or testimony to be probative as to the
facts under consideration. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992); see also Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993). The United States Court of Appeals for
the Federal Circuit has recognized the Board's "authority to
discount the weight and probity of evidence in light of its
own inherent characteristics and its relationship to other
items of evidence." Madden v. Gober, 125 F.3d 1477, 1481
(Fed. Cir. 1997).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case, and
that all reasonable doubt be resolved in favor of the
claimant; however, the reasonable doubt rule is not a means
for reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102 (1999).
In this case, the Board finds that persuasive medical
evidence fails to establish the presence of a current
diagnosis of PTSD. The Board notes that VA hospital and
examination reports dated in September 1996, October 1996,
May 1998, January 1999, and March 2000 excluded a diagnosis
of PTSD. Although private medical reports associated with
the veteran's claim for SSA disability benefits dated in
September 1994 and June 1998 included diagnoses of PTSD,
subsequent VA examiners noted the findings did not discuss
the report of a traumatic event to substantiate the
diagnosis. The Board also notes the September 1994, May
1998, and June 1998 diagnoses of PTSD appear to have been
provided without review of the veteran's medical records and
the February 2000 examiner noted the veteran's records were
not available for review.
In contrast, however, the March 2000 examination included an
examination by two board certified psychiatrists and a
thorough review of the evidence of record except, apparently,
for the February 2000 VA examination report. Although the
February 2000 examination report was not available for the
March 2000 review, the Board finds the omission is not
pertinent because the February 2000 examiner did not review
the prior medical evidence of record which the March 2000
examiners found overwhelmingly demonstrated a diagnosis of
PTSD was not warranted. The Board finds the March 2000
opinion is persuasive and is consistent with other medical
findings based upon examination and review of the documented
medical record. See generally, Owens v. Brown, 7 Vet. App.
429, 433 (1995); Swann v. Brown, 5 Vet. App. 229 (1993);
Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992) (quoting
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991),
reconsideration denied per curiam, 1 Vet. App. 406 (1991)).
The Board also finds although recent amendments to VA laws
are more favorable to matters related to entitlement to
service connection for PTSD that the changes are not
determinative of this appeal. In this case the persuasive
medical evidence does not demonstrate that the criteria for a
diagnosis of PTSD are met.
The only other evidence in support of the claim are the
opinions of the veteran, his mother, his former spouse, and a
lifelong friend. While they are competent to testify as to
symptoms the veteran experiences, they are not competent to
provide a medical opinion because this requires specialized
medical knowledge. Grottveit, 5 Vet. App. at 93; Espiritu,
2 Vet. App. at 494. Therefore, the Board concludes that
entitlement to service connection for PTSD is not warranted.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990). In this case, the
Board finds the preponderance of the evidence is against the
claim for entitlement to service connection and the
reasonable doubt rule is not applicable.
ORDER
Entitlement to service connection for PTSD is denied.
C. Crawford
Acting Member, Board of Veterans' Appeals